UDEH v. FRN (2021)

UDEH v. FRN

(2021)LCN/5012(SC)

In The Supreme Court

On Friday, December 10, 2021

SC.532/2012

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Between

CHIEF CHIDIEBERE UDEH APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

NOTICE OF APPEAL

An appeal can only be properly and validly brought before an appellate Court when the notice of such appeal was filed within the period of time prescribed by the relevant statutes or as may be extended by the Court and has met the requirements of the Rules of Court. Being the foundation of a valid and competent appeal, which would properly invoke the requisite jurisdiction of the appellate Court, a valid and competent Notice of Appeal is a sine qua non to the jurisdiction of an appellate Court over an appeal without which it cannot entertain and adjudicate over it. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267, Aja v. Okoro (1991) 7 NWLR (Pt.203) 260, Yusuf v. Adewuyi Brothers Ltd. (1991) 7 (Pt.201) 39, Reg. Trustees, F.G.C.N. v. Okoisor (2006) LPELR-6161. Mohammed Lawal Garba J.S.C

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Port Harcourt Division, delivered on the 21st day of February, 2011 in a criminal matter numbered as CA/PH/66/2009. On 22nd April, 2011 (61 days after the decision appealed was handed down) the appellant herein had, as of right, appealed the decision.

The appellant’s exercise of his right of appeal is not at large. Section 233 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides inter alia:
(6) Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this Section shall,… be exercised in accordance with any Act of the National Assembly and rules for the time being in force regulating the powers, practice and procedure of the Supreme Court.
Pursuant to Section 233(6) of the Constitution, Section 27(2)(b) of the Supreme Court Act, 2004 provides, and it is mandatory, that the period prescribed for the giving of notice of appeal, in an appeal in a criminal case, is thirty (30) days from the date of the decision appealed. Upon the effluxion of 30 days from the date of the decision appealed, an aggrieved party cannot appeal as of right; his right of appeal having ceased.

A notice of appeal filed outside the period prescribed by statute is statute-barred, illegal, null and void initio: OSUN STATE GOVERNMENT v. DALAMI NIGERIA LTD (2007) 9 NWLR (pt. 1038) 66; (2007) ALL FWLR (pt. 365) 438; JALLCO LTD v. OWONIBOYS TECH. SERVICES LTD (1995) 4 NWLR (pt. 391) 534 at 536. Illegality has never been condoned by Courts of law and equity.

In law, when an act is illegal and a nullity; it is an act which has no legal consequence. It is completely incompetent. The act is not only bad; it is incurably bad: per Lord Denning, L J in UAC LTD v. McFOY (1961) 3 ALL E.R. 1169. See also OKAFOR & ORS. v. A.G, ANAMBRA STATE (1991) 6 NWLR (pt. 200) 659 at 678-679; ALHAJI B. U. SALEH v. ALHAJI SHETTIMA MONGUNO & ORS (2006) 15 NWLR (pt. 1001) 26 at 74.

The Court can, in any matter of incompetence of the Court’s process including notice of appeal, grounds of appeal, raise the issue suo motu to ensure that its proceedings founded on such process are not subsequently and consequentially a nullity: OKORIE V. UDOM (1960) 5 FSC 162. 165; NTA & ORS v. ANIGBO & ORS (1972) 5 SC 156; ANADI v. OKOLI (1977) 7 SC 57 at 63; OSAWARU v. EZEIRUKA (1978) 6-7 SC 135; ABUBAKAR v. JOSEPH (2008) 13 NWLR (pt. 1104) 307.

The purported notice of appeal filed, as of right, on 22nd April, 2011, 61 days after the decision handed down on 21st February, 2011, being an incurable illegality, is a non-starter. It is not capable of invoking the jurisdiction of this Court. Appropos, it has rendered the appeal incompetent, invalid and void ab initio. Consequently, the appeal shall be, and it is hereby, struck out.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to underscore the support I have in the reasonings from which the decision came about, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Owerri Division, Coram: Helen Morenikeji Ogunwumiju JCA (as he then was), Abubakar Jega Abdulkadir, Mojeed Adekunle Owoade JJCA, delivered on the 21st day of February, 2011, wherein the Court below affirmed the trial Court’s conviction and sentence of the appellant for a six count charge of offences against the Corrupt Practices and other Offences Act 2000, per Nwanosike J.

The detailed facts leading to this appeal are well captured in the lead judgment and no useful purpose would be served in repeating them.

On the 23/9/2021 date of hearing, learned counsel for the appellant, Theophilus Ochonogor, Esq adopted the brief of argument filed on 26/7/2013 and deemed filed on 28/5/2014. Also, a reply brief filed on 26/9/2018 and deemed filed on 24/10/2019. He distilled five issues for determination, which are thus:-
i. Whether the Court of Appeal was right when it held that the trial Court (i.e the Abia State High Court sitting at Umuahia, coram: Hon. Justice S.O.E. Nwanosike) just by the mere fact of being a State High Court, has the requisite jurisdiction to try cases under the Corrupt Practices and other related Offences Act, 2000 upon which the Appellant was tried” (distilled from ground No. 1 on the Notice of Appeal)
ii. “Whether the Court of Appeal was right to have refused to consider an issue for determination that was validly raised and argued by the Appellant and shown to have been covered by the notice of appeal?” (distilled from ground No.2 in the Notice of Appeal)
iii. “Whether the Court of Appeal was right to have raised an issue suo motu and went on to decide it without giving any of the parties an opportunity to address the Court on it?” (distilled from ground No.3 in the Notice of Appeal)
iv. “Whether the learned Justices of the Court of Appeal were right to have affirmed the trial Court’s conviction and sentence of the Appellant when it was clear, from the record, that the prosecution failed to prove its case against the Appellant beyond reasonable doubt as required by law?”
v. “Whether the Court of Appeal was right to have affirmed the conviction of the Appellant on counts No. 1 – 5 when it was clear that the trial Court had no jurisdiction to entertain them in the first place as they are offences that are unknown to law?’ (distilled from ground No.6 in the Notice of Appeal)

Learned counsel for the respondent, Mohammed S. Diri Esq adopted the Amended respondent’s brief of argument filed on 8/3/2018. He formulated four issues for determination, viz:
1. Whether the Court of Appeal was right when it held that the Court of the first instance (l.e Abia State High Court sitting in Umuahia has the requisite jurisdiction to try cases under the Corrupt Practices and other Related Offences Act, 2000 (Distilled from ground No. 1 of the Notice of Appeal.)
2. Whether the Court of Appeal is bound to consider issue(s) NOT PROPERLY raised before it and particularly where such failure to consider the issue(s) HAD NOT occasioned any miscarriage of justice? (distilled from ground No.2 and 3 of the Notice of Appeal.)
3. Whether the Court of Appeal was right to have affirmed the trial Court’s conviction and sentence of the Appellant after having satisfied itself that the prosecution has proved its case against the Appellant beyond reasonable doubt as required by the law? (distilled from ground No.5 of the Notice of Appeal.)
4. Whether the Court of Appeal was right to have affirmed the Court of the First instance’s conviction and sentence of the Appellant after having satisfied itself that the offence is known to law? (distilled from ground No.6 of the Notice of Appeal.)

The judgment of the Court below was delivered on 21st February, 2011 and the Notice of Appeal filed on 22nd April 2011, a period of 61 days.

I have delved into this area of the competence or not of the Notice of appeal on my own because the Court has the power to so raise it. See Okorie v Udom (1966) 5 FSC 162 at 165, Osawaru v Ezeiruka (1978) 6-7 SC 135, Abubakar v Joseph (2008) 13 NWLR (pt.110) 307.

The need to enter into the matter of the incompetence of the Notice of Appeal is critical because once the Notice of Appeal is incompetent, the appeal itself falls flat on the ground. See Olowokere v African Newspaper Ltd (1993) 5 NWLR (pt. 295) 583 – 586.
To underscore the point is to state that the Notice of Appeal is an originating process and is not one of the processes of Court that can be deemed properly filed subsequently. Therefore once it is a nullity having been filed as in this instance out of time and without leave which is mandatorily necessary, it is null and void from the very beginning. See Co-operative Bank of Eastern Nigeria Ltd v Emeka Ogwuru (1991) 1 NWLR (pt. 168) 458 at 567 (CA).
Stated another way, the Notice of Appeal filed 31 days outside the 30 days prescribed by statute that is the Supreme Court Act, Cap 515 Laws of the Federation of Nigeria 2007, Section 27 (2) (b) precisely, is statute-barred. I place reliance on Osun State Govt v Dalami (Nig) Ltd (2007) All FWLR (pt.365) 438; Jallco Ltd v Owoniboys Tech Services Ltd (1995) 4 NWLR (pt. 391) 534 at 538.
In the case at hand, the judgment of the Court below was delivered on 21st February, 2011 and the Notice of Appeal at the Supreme Court under discourse was filed 22nd April period of 61 days.
This is a clear 31 days after the expiration of the stipulated period within which a criminal appeal ought to be initiated. The situation therefore takes the position of a condition precedent for the exercise of the right of appeal in the light of failure to seek and obtain leave to appeal. The result is the incompetence of the Notice of Appeal thereby rendering the appeal a nullity, translating to there being no appeal. See Olowosoke v Oke (1972) 11 SC 1; NALSA & TEAM Associates v NNPC (1991) 8 NWLR (pt.212) 652 at 666.

There is no need belabouring a moot point in that there is no appeal before the Court, in the face of the incompetent notice of appeal and therefore, a striking out is the resultant effect.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Notice of Appeal filed on the 22nd April 2011 being incompetent is hereby struck out.
I abide by the consequential orders made.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the lead judgment written by my learned brother Ejembi Eko, JSC in this appeal, I agree that the Notice of Appeal filed on the 22/4/2011 against the decision by the lower Court delivered on the 21/02/2011, was filed clearly, after the extension of the period of thirty (30) days prescribed and limited under the provisions of Section 27 (2) (b) of the Supreme Court Act, 2004 for giving or filing such a notice.

The Notice of Appeal was filed out of the period of time stipulated specifically, for the filing of a valid and competent Notice of Appeal at the discretion of an appellant, as of right.

In this appeal, there is no record or even a suggestion that the time prescribed and limited by statute for filing the Notice of Appeal was duly extended by the Court before it was filed by the Appellant and so it is undoubtedly, invalid and incompetent to deprive the Court of the jurisdiction to entertain it. See Etim v. State (1982) 10 SC. 10, Alor v. Ngene (2007) 2 SC, 1.

For the above and succinct reasons in the lead judgment, I join in striking out the Notice Appeal filed on 22/04/2011 for being incompetent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Ejembi Eko, JSC has graciously accorded me the opportunity of a preview of the judgment just delivered by His Lordship. I agree in toto with the reasoning aptly postulated therein, to the conclusive effect that the instant appeal is grossly incompetent.

Hence, I too hereby strike out the appeal for being incompetent.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, EJEMBI EKO, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.

Appearances:

Theophilus Ochonogor, Esq., with him, A. M. Sanusi, Esq., C. Ogenna, Esq. and S. Abubakar, Esq. For Appellant(s)

Mohammed Saidu Diri, Esq., with him, Ejika A. Orji, Esq. For Respondent(s)